A former Family Court judge says it was “an extraordinary overreach” for the Federal Court to find that the ordinary meaning of “woman” includes a biological male who merely identifies as a woman, in a decision now set to be challenged in the High Court.
King’s Counsel Catherine Carew has strongly questioned the Federal Court finding that transwoman Roxanne Tickle was the victim of discrimination by Giggle app founder Sall Grover, as Ms Grover filed late on Friday for special leave to appeal against the decision to the High Court.
The High Court is expected to accept the landmark case, which has raised fundamental questions about the legal rights of Australian women and transgender people.
Last month the Federal Court found that Ms Grover had discriminated against Ms Tickle on the basis of her “gender identity” when she barred the transwoman from the female-only app.
But in an opinion article published in The Australian, Ms Carew says: “One is left with the impression that the Court bent over backwards to achieve a particular outcome.”
“The adage, ‘hard cases make bad law’ is apt in this case,” adds Ms Carew, who retired from the bench six weeks ago after 10 years on the Family Court.
In the application for special leave filed in the High Court, Ms Grover’s lawyers, barristers Ian Neil SC, Leigh Howard and Megan Blake, argue that Ms Tickle is not a woman within the meaning of s.7D of the Sex Discrimination Act.
They submit that Ms Grover’s exclusion of biological men from her app, even if they identify as women, is therefore a “special measure” permitted under the act for the purpose of achieving equality between men and women.
They argue that the act consistently uses “men” and “women” exclusively to denote a person’s biological sex – that is, necessarily, their sex at birth, being one of only two binary possibilities. The words, they say, reflect a concept that is different from that of “gender identity”.
The act supports this contention because it refers to “women” in connection with pregnancy, potential pregnancy and breastfeeding, “all of which are circumstances that can only be experienced by women”.
In a recent Senate estimates hearing, Sex Discrimination Commissioner Anna Cody doubled down on the claim that biological males who identified as women must be protected from discrimination on the basis of “potential pregnancy” in the act. Women’s rights advocates slammed the statement as “crazy” and “deeply frustrating”.
Ms Grover’s lawyers argue that the definition of “sexual orientation” in the act is a reflection of the fact that sexuality is oriented towards a biological sex rather than an identity or a status, quoting the landmark For Women Scotland case in the UK: “People are not sexually attracted towards those in possession of a certificate,” they say.
Ms Carew suggests in her article that if special leave is granted, the Federal Court’s decision against Ms Grover is open to challenge on a number of fronts.
The court found that Ms Grover had directly discriminated against Ms Tickle, a person “designated” male at birth but with a female gender identity, when she barred Ms Tickle from the female-only networking app.
Ms Tickle had provided a photograph when asking to join the app and, when Ms Grover reviewed the photograph, she perceived the applicant as a man.
Ms Grover says she was unaware of Ms Tickle’s gender identity.
The Full Court found that Ms Grover excluded Ms Tickle from the app “on the basis of her gender-related appearance by reference to her selfie, and this amounted to direct discrimination by reference to a characteristic that pertains to people of Ms Tickle’s gender identity, being transgender women”.
Ms Carew argues the evidence in the case does not support the court’s finding that people such as Ms Tickle, born male but with a female gender identity, generally appear to be male.
“Tickle did not even make this assertion,” Ms Carew points out.
The SDA was amended in 2013 by the Gillard Labor government to add the three new grounds of discrimination – sexual orientation, gender identity and intersex status – and remove the definitions of man and woman.
Ms Carew acknowledges that the 2013 amendments to the act were “appallingly drafted” but questions the claim of the appeal court judges that all they were doing was “applying the law”.
Ms Carew said it was regrettable that the judges, both at trial and on appeal, adopted terms such as “misgender” and “cisgender”, which were used by Tickle but do not appear in the SDA.
The judges justified the use of the terms as being “convenient” and “purely descriptive”.
Ms Grover was ordered to pay damages of $20,000 for Ms Tickle’s hurt feelings including aggravated damages for her “gratuitous” conduct in “misgendering” Ms Tickle during the trial.
“As Grover had a genuine belief that only persons born female can be women, was it wrong for the court to increase the damages because Grover ‘misgendered’ Tickle?” Ms Carew asks.